The Supreme Court clarified that a higher court is not precluded from considering the existence of a jurisdictional fact simply because the trial court did not state a question regarding maintainability, provided that No new facts/evidence are required at the appeal stage.

To this end, the Court clarified the judgments A. Kanthamani v. Nasreen Ahmed (2017) 4 SCC 654 and IS Sikandar cK Subramani (2013) 15 SCC 27.

In IS Sikander, it was held that the decree for specific relief could not be granted if a declaration regarding the nullity of the termination of the agreement was not sought.

In Kanthamani it has been held that unless a question of maintainability is framed by the trial court, the action cannot be deemed not maintainable at the appellate stage merely because an appropriate declaratory relief does not was not asked.

In the present case, the Supreme Court was considering whether the Court of Appeal could have declared that the action for specific performance was inadmissible since no declaration had been sought that the cancellation of the contract of sale was invalid. The trial court had not raised any issue regarding maintainability.

The Court noted that Kanthamani The judgment did not deal with the effect of the non-existence of a jurisdictional fact.

Referring to the judgment in ShrishtDhawan(Smt)v.ShawBros (1992) 1 SCC 534, the court composed Justice Dipankar Datta and Justice Sanjay Karol observed:

“If the court of first instance does not ensure that the fact of jurisdiction justifying the granting of relief exists, nothing prevents the court located higher in the hierarchy from ensuring this. It is true that the question of admissibility of a suit must be examined only through the prism of Article 9 of the CPC, and the court can rule on this point either when framing a question, or even before, if Order VII, rule 11 (d) the same is applicable. In an appropriate case, despite the failure of the trial court to frame a question touching on the fact of jurisdiction, the higher court would be justified in pronouncing its verdict by applying the test laid down in Shrisht Dhawan (supra). “

The Court clarified that “any failure or omission on the part of the court of first instance to formulate a question of maintaining an action concerning a fact of jurisdiction cannot in itself reduce the powers of the higher court to examine whether the fact of jurisdiction actually existed well to grant relief as claimed, provided that no new facts needed to be pleaded and no new evidence was adduced.

In other words, nothing prevents the superior courts from deciding the factual question of jurisdiction to determine whether or not the plaintiff is entitled to relief.

In the present case, no question as to the continuance of the action was raised during the proceedings before the trial court. However, after noting that the point of consideration concerning the availability and willingness to execute the sales contract was held against the buyer, the Court did not consider it appropriate to rule on this question.

“In this case, although no question as to whether the suit should be continued was raised during the proceedings before the trial court, the question of whether the agreement is true, valid and enforceable was resolved against sellers. Obviously, due to the dismissal of the action, the sellers did not appeal. Nonetheless, given our findings on whether the buyer was “ready and willing,” we see no need to pursue further discussion of the jurisdictional fact issue here.the court said.

Case Title: R. KANDASAMY (SINCE DEAD) AND ORS. AGAINST TRK SARAWATHY & ANR.

Citation: 2024 LiveLaw (SC) 911

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